Michael Forian flouted a decades-old law during the last federal election banning the transmission of election results before polls in other parts of the country have closed.

By:Kenyon WallaceToronto Star, Published on Thu Mar 01 2012

Elections Canada is coming under fire for its seeming inability to enforce electoral laws and its unwillingness to provide details of complaints about the harassing calls.

“There’s no accounting for what happens to complaints once they’re made, what the results of that are,” Rae told reporters in the Commons foyer. “It’s not a transparent process and I’m troubled by it. I don’t believe they have sufficient resources.”

He said the ever-widening scope of allegations of misleading phone calls warrants an RCMP investigation, or, failing that, a public inquiry.

During the 2011 campaign, Elections Canada received more than 1,000 complaints about questionable activities — including automated, unsolicited and crank calls — but the agency will not disclose details on how they were dealt with.

Diane Benson, an Elections Canada spokesperson, told the Star Thursday she did not have information about how many complaints dealt specifically with suspicious calls or how quickly they were dealt with.

The only indication that Elections Canada did anything about these complaints is a single paragraph in Chief Electoral Officer Marc Mayrand’s report to Parliament on the election.

“The Commissioner’s Office dealt with the majority of the 1,003 communications in a timely manner by verifying the complaint, providing the requested information, contacting the parties to correct the situation or educating the parties involved on the requirements of the Canada Elections Act,” Mayrand wrote last August.

Recent court filings show Elections Canada is looking into allegations of misleading calls in Guelph and is investigating RackNine Inc., an Edmonton-based automated call company. But the agency will not officially confirm nor deny whether it is investigating any complaints.

“We need to know what they’ve done with every single one of those complaints in detail to determine whether they have the capacity, expertise and impartiality to be handling them,” said Duff Conacher, founding director of Democracy Watch. “The fact that Elections Canada has not disclosed information about complaints they have resolved is just negligence.”

There are two options the commissioner of Elections Canada has to address complaints, said Benson. If the commissioner believes there is enough evidence to lay a charge under the Canada Elections Act, the information will be handed over to the Director of Public Prosecutions.

Another option is to enter into a compliance agreement with anyone the commissioner believes has committed or is about to commit an offence under the Act. The agreement is voluntary and is meant to ensure compliance with the Act. No charges are laid in this case.

According to Elections Canada’s reports on the 2004, 2006, 2008 and 2011 general elections, the agency received a total of 4,211 wide-ranging complaints, including some about accessibility problems at polling stations, the placement of election signs, and crank calls.

Forty-three of these complaints resulted in compliance agreements, while 10 resulted in convictions.

Most of the convictions were for things such as failing to file proper financial records, exceeding election expense limits, and third parties illegally paying the electoral expenses of candidates. All transgressions were met with fines between $100 and $2,000.

The only exception was a $50,000 fine issued to the Conservative Party of Canada last November for improper election spending, known as the “In and Out” scandal, in the 2006 election.

And on election day 2011, Montreal student Michael Forian was among many Twitter users who openly flouted an archaic provision in the Canada Elections Act banning the “transmission” of election results before all polls close.

Early in the evening, Forian began tweeting election results from Atlantic Canada before polls in Western Canada had closed, despite warnings from Elections Canada in the lead-up to the election that the practice was illegal. But nothing came of it.

“I never received any communications from Elections Canada or the federal government,” Forian, 17, said Thursday. “I looked at it in the sense that you don’t necessarily have to follow laws if they’re bad laws and against somebody’s individual right and liberty to freedom of speech . . . . It was a backlash.”

Mayrand has since said the federal government should consider revoking the law, which dates to 1938.

Jack Siegel, a Toronto-based lawyer specializing in election and political law, says he doesn’t think Elections Canada has a lack of rigour when dealing with complaints.

“In politics, people raise complaints for reasons that don’t simply relate to wrongdoing. There’s a lot of really boneheaded stuff,” said Siegel, noting that one of the roles of the Commissioner of Elections Canada is to act as a gatekeeper for the complaints that come into the agency.

He added that, when it comes to the reported harassing or misleading phone calls, although the penalties for attempting to intimidate or compel a person to vote or refrain from voting are harsh — a $5,000 fine, five years in prison, or both — people rarely get the maximum punishment on the first offence.

More on thestar.com

We value respectful and thoughtful discussion. Readers are encouraged to flag comments that fail to meet the standards outlined in our
Community Code of Conduct.
For further information, including our legal guidelines, please see our full website
Terms and Conditions.